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Columnists
Regulatory
Developments
Michael
C. Ford Attorney Polsinelli
Shughart, PC
Tulloch
and tree huggers tread water
April/May
2007
Back
to the world of water regulation for this issue, where perhaps the
biggest news, other than the perpetual imminence of the post-Rapanos agency
guidance regarding the extent of Clean Water Act jurisdiction, is
another jurisdiction-related setback suffered by the agencies in a case
unrelated to Rapanos. On January 30, 2007, the United States
District Court for the District of Columbia decided National
Association of Home Builders vs. U.S. Army Corps of Engineers, the
latest chapter in the "Tulloch Rule" saga that began over a
decade ago, involving the regulation of excavation activities in
jurisdictional waters under the 404 program.
We
can pick up the story in 2001, with the Corps’ and EPA’s third
attempt at defining when the fallback of dredged material from and into
jurisdictional waters constitutes a regulated discharge. The regulations
at issue (1) defined "incidental fallback" as "the
redeposit of small volumes of dredged material that is incidental
to excavation activity . . . when such material falls back to substantially
the same place as the initial removal"; and (2) created a
presumption that a 404 permit is required with the use of
"mechanized earth-moving equipment to conduct . . . earth-moving
activity in the waters of the United States," absent
"project-specific evidence" showing that the activity results
in "only incidental fallback." 1 The instant
suit challenging these provisions was filed in 2001, with the latest
decision issued January 30, 2007.
The
court first rejected the requirement that the volume of fallback be
small, concluding that the "volume of material being handled is
irrelevant." The court explained that the incidental
fallback/redeposit criteria are "better understood in terms of two
other factors: (1) the time the material is held before being dropped to
earth and (2) the distance between the place where the material is
collected and the place where it is dropped." While the proximity
issue was addressed by the "substantially the same place"
language, the court found the regulations deficient in their failure to
address the "holding time" issue. Finally, the court rejected
the so-called "rebuttable presumption" that the use of earth
moving equipment results in a regulated discharge, characterizing the
Corps’ position as indicative of "a degree of official
recalcitrance that is unworthy of the Corps." The court prohibited
EPA and the Corps from enforcing the rule and reminded the agencies of
their obligation to make a "reasoned attempt" to draw a
"bright line" distinguishing incidental fallback from
regulated other redeposits, which they had thus far failed to do.
The
post-Rapanos case law has continued to develop over the last few
months, thanks to citizens groups, with three more major decisions
rendered, including two more from within the Ninth Circuit, and all of
them involving alleged NPDES permit applicability (not § 404). Environmental
Protection Information Center v. Pacific Lumber Co.2
is the first case in the Ninth Circuit (second nationally) to apply Rapanos
in the context of intermittent or ephemeral streams. The case involved
the alleged discharge of sediment to intermittent streams, which lead to
a navigable-in-fact water. The court applied the "significant
nexus" concept (Kennedy’s test), which it characterized as
requiring at least evidence of a hydrologic connection, plus, in the
case of intermittent or ephemeral waters, some additional demonstration
that these waters significantly affect the quality of the downstream
navigable-in-fact water. Unfortunately, the court did not elaborate as
to what evidence would suffice to meet this demonstration, except to
note that a prior Ninth Circuit decision had found "ecological
connections" sufficient. The court did, however, also reject any
requirement to "demonstrate the flow of pollutant" from the
receiving water to the navigable-in-fact water, suggesting that the
significant nexus test for jurisdiction, unlike the Scalia position,
does not require evidence that the discharged material actually reached
a navigable-in-fact water..
Simsbury-Avon
Preservation Society, LLC v. Metacon Gun Club, Inc. 3
involved a citizens group’s attempts to force a shooting range located
on a wetland to obtain a 402 permit essentially because it periodically
flooded and flowed into a nearby river (although it was apparently not
adjacent to the river). The court concluded that the periodic flooding
was insufficient to establish the requisite "continuous
connection" between the wetland and navigable-in-fact water under
the Scalia plurality test. The court also applied the significant nexus
test using the limited amount of sampling data that has been offered by
the plaintiffs purporting to show lead contamination on the property
presenting a risk to humans and wildlife. The court found the showing
insufficient to establish a significant effect on the navigable-in-fact
water, and granted summary judgment for the defendant.
Finally,
the Ninth Circuit issued its second post-Rapanos decision, San
Francisco Baykeeper v. Cargill Salt Div.4 The court
denied jurisdiction over discharges to a pond adjacent to a
navigable-in-fact waterway, clarifying that adjaceny to a
navigable-in-fact water alone supports jurisdiction only where the
receiving water is a wetland. The court also easily rejected the
plaintiffs significant nexus argument since the evidence established the
pond did not even flow into the navigable-in-fact water.
Maybe
by the time this issue hits the streets, we’ll have that agency
guidance….
Footnotes:
1
66 Fed. Reg. 4550, 4575 (January 2001) (emphasis added).
2
2007 WL 43654 (N.D. Cal. January 8, 2007).
3
2007 WL 26341 (D. Conn. January 31, 2007).
4
2007 WL 686352 (9th Cir. 2007).
2008/1234
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